A pending case before the National Labor Relations Board (NLRB) is set to determine whether college athletes should be considered employees under federal labor law. The case, which began its hearings on November 7, has been filed against the National Collegiate Athletic Association (NCAA), the University of Southern California, and the Pac-12 Conference, and could have wide-ranging impacts on the higher education sector.
The case argues that the NCAA, USC, and the Pac-12 jointly employ student football and basketball players and that they have been unlawfully designated as “non-employee student-athletes”. This is one in a series of lawsuits attempting to secure employee rights for student athletes, and follows a 2021 Supreme Court ruling that the NCAA violated antitrust laws by prohibiting athletes from profiting from their name, image and likeness.
If student athletes are classified as employees under the National Labor Relations Act, it might open a “Pandora’s Box” of legal issues, particularly for smaller colleges that may struggle financially to employ athletes, according to Irwin Kishner, co-chair of the sports law group at Herrick Feinstein LLP. An employee classification could also expose universities to wage, hour and discrimination suits from athletes, along with legal questions under Title IX, which requires equal educational opportunities for all students.
Recent trends, such as basketball players at Dartmouth College filing a petition to unionize with the Service Employees International Union, suggest an increasing likelihood that student athletes may pursue unionization if deemed employees. Labor law professor at the University of Denver Sturm College of Law, Roberto Corrada, believes that the recognition of student athletes as employees is inevitable.
Yet, how institutions will respond to possible unionization, who they would need to negotiate with, and how they would define bargaining units are all significant considerations that would need to be addressed. Equally, should the NCAA be viewed as a joint employer, it would have far-reaching impacts, including providing the NLRB jurisdiction over public institutions.
Despite the potential complications, many believe the fight for employee status is an important one. Corrada points to the huge revenues generated by the Power Five conferences as proof of the imbalance in the current status quo. He believes it is unjust that universities are so greatly benefiting financially from student sports, while the athletes themselves do not receive monetary compensation.
However, the possibility of student athletes gaining employee status is not embraced by all. NCAA spokesman Tim Buckley opposes the effort, arguing that it could lead to students being “fired after a few bad games in the middle of the season.”
In view of all of the above, it appears the question of whether NCAA student athletes should be classified as employees will continue to be an ongoing – and highly debated – topic.
To read the full article, click the link: NCAA Student Athletes as Employees Case to Open ‘Pandora’s Box’.